Wednesday 25 January 2012

Response to Scottish Government consultation on Independence Referendum

As with the UK Government's Consultation, I have responded to the Scottish Government's Consultation on the Independence Referendum and suggest you do the same:

To whom it concerns,

I enclose my response to the questions raised in the Scottish Government's Consultation Paper on the Independence Referendum. I draw particular attention to my recommendations in respect of the franchise and the need for a public and legally clear second question so as best to make clear independence takes primacy in the event of a double-Yes vote,


Graeme Cowie

Q1: What are your views on the referendum question and the design of the ballot paper?

The question is straight-forward and accessible. I'd rather the paper properly addressed the mechanics of a second question (to put that issue to bed once and for all) instead of vaguely mentioning that it could be added if there was a call for it. I disagree with the Scottish Government's view that, per para 1.5 the question could circumvent s29 and Schedule 5 of the Scotland Act in the event a s30 order or extension of power by Act of Parliament was not forthcoming.

Q2: What are your views on the proposed timetable and voting arrangements?

They are satisfactory.

Q3: What are your views on the inclusion of a second question in the referendum and the voting system that could be used?

I believe a second question asking "notwithstanding your response to Q1 should the powers of the Scottish Parliament should be extended to include full tax-raising powers and other competences which are presently reserved matters" or words to that effect, should be on the ballot paper. As a Liberal Democrat, I have urged my party to work with the Scottish Government to define the parameters of this third option and I would hope that a bit of give and take would be forthcoming on both sides. The first question on the ballot, contrary to the original Referendum Bill in the last Parliament, should be the independence and not the extra-powers question. This leaves the voter in no doubt whatsoever that the primary issue at stake is independence and that devo-max is a related but alternative proposition that will only come into play if the first question results in a No vote.

As a word of caution, I would avoid using "but remaining with the UK" or any reference to such in the second question, because it makes the propositions not merely related alternatives but mutually exclusive propositions. This should remove any pretence of uncertainty with reference to what has been dubbed "Rennie's Riddle".

Q4: What are your views on the proposal to give the Electoral Management Board and its Convener responsibility for the operational management of the referendum?

I am content with these propositions. It is a welcome development that the SNP has disposed of its proposal for a separate Referendum Commission, which would have been an unnecessary complication, not terribly expedient, and would have shown a disregard for the good, independent, and impartial work of the Electoral Commission in both UK-wide and devolved referenda.

Q5: What are your views on the proposed division of roles between the Electoral Management Board and the Electoral Commission?

No objections.

Q6: What are your views on the idea that the referendum could be held on a Saturday or on other ways which would make voting easier?

I see no compelling reason to hold it on a Saturday. By Autumn 2014 the football season will have gotten well under-way and many fans will be quite far away from their polling station in any case. The standard mid-week position is one that should be adopted. I don't see any great need to change the existing polling location arrangements either. That's a matter for the local authorities' Election Boards.

Q7: What are your views on extending the franchise to those aged 16 and 17 years who are eligible to be registered on the electoral register?

I wholeheartedly agree with the principle of votes at 16. I cannot, however, agree with the mechanism the SNP has described. There are severe legitimacy issues when it comes to an ad hoc reduction of the franchise as part of the same Act of Scottish Parliament that provides for a one-off plebiscite. Further, the manner and form of registration on the Electoral Roll for 16 and 17 year-olds is inexact and the cut-off would not be as clear (with some 16 year-olds being eligible to go on the roll and others not). The reason this group are registered on the roll at all is to guarantee that they will be on the roll by the time they are eligible to vote at 18. It comes across as incredibly ad hoc and doesn't further it for the right reasons in the constitutionally appropriate manner

If you are going to extend the franchise you have to do it properly and by separate Act of Parliament. I have a lot of sympathy for the SNP in this area since both the Gould Report and Calman Commission supported the devolution of elections in Scotland to the Scottish Parliament. I would suggest that the Scottish Government issue a specific request to be given the power to set the franchise in Scottish Parliamentary and local elections, and by extension any referendums held in Scotland only. Then they could introduce a Representation of the People (Scotland) Bill prior to the passage of the Referendum Bill into law, extending the franchise to 16 for all Scotland-only elections.

Q8: What are your views on the proposed spending limits?

I see nothing objectionable.

Q9: Do you have any other comments about the proposals in the draft Referendum (Scotland) Bill?


Monday 23 January 2012

My response to the UK Scottish Referendum Consultation

I have responded to the UK Government's consultation on the Scottish Independence Referendum and enclose my comments verbatim below. I would strongly encourage all, regardless of their political persuasion, to make their views known so that we get the most considered and appropriate result. Constitutional law is not something to be treated as a political weapon (by either side of this debate) and legal clarity is imperative.

To whom it concerns,

Please find attached the document containing my response to the consultation document published by the UK Government in respect of the delivery of a legal and impartial referendum on Scotland's constitutional future. I trust that the UK Government is content to give considerable ground on its assumed position, which I consider to be untenable on a number of grounds into which I elaborate through my responses.

Kind Regards,

Graeme Cowie

Q 1: What are your views on using the order making power provided in the Scotland Act 1998 to allow the Scottish Parliament to legislate for a legal referendum in an Act of the Scottish Parliament?

A: This is probably the most appropriate cause of action, given the s30 procedure requires proper consultation with the Scottish Parliament itself. The alternative would be to make for such a provision as an amendment to the current Scotland Bill, which has its merits in certain respects which I shall elaborate on in question 3 and also in 4-6.

Q 2: What are your views on the UK Parliament legislating to deliver a referendum on independence?

A: Clearly it has the legal power to do so (unlike the Scottish Parliament at present), but on a principled constitutional level and on a basic political level this would be incredibly stupid. Not only would it lend itself to allegations that Westminster was “dictating” the terms of a referendum to an SNP administration with a clear political mandate on the matter, but it would also allow English, Welsh and Northern Irish MPs a say on the formulation of the questions. This is a matter for Scotland and its representatives alone.

Q 3: What are your views on whether the Scotland Bill should be used either to:
i) give the Scottish Parliament the power to legislate for a referendum; or
ii) directly deliver a referendum?

A: As I explained in response to Q 1, there is an argument for doing the first of these rather than issuing a s30 order, which I will elaborate upon later. As for the second, I emphatically reject it for the reasons highlighted in my response to Q 2.

Q 4: What are your views on the oversight arrangements for a referendum on Scottish independence?

A: In general terms, I agree that there should be constitutional consistency of matters of franchise and performance of electoral procedure by the existing bodies. However, I would draw attention to one of the recommendations from the Calman Commission, a provision supported by all of the parties with representation in the Scottish Parliament, that matters such as the franchise and the arrangements for local and Scottish Parliamentary elections should be devolved in the Scotland Bill down to Holyrood. The UK Government's decision not to implement this proposal through the primary legislation should be revisited. It logically follows that if Holyrood is to be allowed to set the franchise conditions for those elections, that it should control similar functions for any referendum which only applies to Scotland.

Q 5: Do you think the Electoral Commission should have a role in overseeing a referendum on Scottish independence?

A: Yes I believe that the Electoral Commission is the appropriate body for oversight of the referendum. I do not believe a Referendum Commission set up separately (regardless whether it is set-up by Holyrood or Westminster) is either necessary or expedient. The EC has shown itself perfectly capable of carrying out both UK-wide and devolved referendum oversight without any questions of impartiality.

Q 6: What are your views on which people should be entitled to vote in a Scottish independence referendum?

A: In general terms, those who should be allowed to vote should be the same as those who are eligible to vote in the Scottish Parliamentary elections. I notice that this question omits to respond to a key area of contention, which relates to the age at which people should be allowed to vote. Without entering into the politics (e.g. accusations of opportunism on one side, and of inconsistency by some on the other) my response to this should be understood in the context of my response to Q 4. The franchise arrangements for Scotland-only elections and referenda should be a matter for the Scottish Parliament to decide. On the principle, I believe they should be allowed to lower the voting age to 16 should they so desire, but it should be done for all Scottish elections through an Act of Scottish Parliament at some point within the next twelve months once the Scotland Bill (with my recommended amendments) passes into law.

Q 7: What are your views on the timing of a referendum?

A: This should be a matter principally for the Scottish Parliament. Contrary to the suggestion in the document, there should be no “sunset clause” of any kind in the event the power is extended either through a s30 order or through the Scotland Bill. The SNP have indicated they wish to hold it in the Autumn of 2014, which is a date completely within the scope of their manifesto pledge and they should be entitled to move forward on that basis.

A reasonable restriction may be that the power may only be invoked once in X number of years (to prevent perpetual referendums on the same issue) but as a matter of expediency, that matter should be agreed upon in advance with the Scottish Government. I note that Alex Salmond has said that this issue is very much a “once in a generation” issue and a mandatory interval of between 10-20 years between referendums on Scottish independence would make sense.

Q 8: What are your views on the question or questions to be asked in a referendum?

A: There should be two questions on the ballot. The first should be a question about whether or not Scotland should become an independent sovereign state. The second should read, approximately, “notwithstanding the response given to the first question, should the Scottish Parliament have (e.g.) full taxation powers and extended competence in several other presently reserved areas.” In the event that the first question receives more than 50% of the popular vote the second question should be completely disregarded.

I do not share the view of the UK Government that a second question somehow “complicates” matters, though the ordering and wording of the questions should be very carefully crafted so as to leave absolutely no doubt that, notwithstanding the response to any “devo-max”-esque question, a majority vote for independence will be honoured. The idea that the people of Scotland can't understand a very basic premise of a two-question referendum on connected but alternative propositions is frankly rather insulting. There are only likely to be a maximum of three campaigns anyway (a Yes-Yes, a No-No, and a “Yes to more powers, No to independence”). The “Yes to independence, No to more powers” group would be so ridiculously tiny and arguing almost as obscure a proposition as someone in 1997 saying “there should not be a Scottish Parliament but it should have tax powers”. There are genuine areas in need of clarity here, but the UK Government must desist from looking for obfuscation when it's not actually there.

Q 9: What are your views on the draft section 30 order?

A: The Order in its current form is manifestly inappropriate in light of the various issues I have elaborated upon above. The proposed Schedule 5A has a number of problems which I shall list:

Para 2: It is not necessary to require that a referendum not be held on the same day as other elections. Whilst that may be expedient in and of itself to hold a poll on such an issue outside of other election cycles it is inappropriate to insist on such a provision, especially given that the UK Government only as far back as May 2011 held a referendum on the Alternative Vote at the same time as Scottish Parliamentary elections AND English local council elections. Given Scotland's rather negative experience with multiple polling in 2007 I doubt the Scottish Parliament would seek to hold simultaneous polls in any case.

Para 3: This is a blank sunset clause. There should be no sunset clause on the power to hold a referendum. As I explained earlier a reasonable time provision would be to impose a mandatory waiting time between polls on the subject matter of between 10 and 20 years.

Para 4: This provision seeks to prevent a second question being present on any ballot. For the reasons I gave earlier, this provision should be removed.

Para 5: This limits the franchise to those entitled to vote for “the Parliament”. In the interests of clarity I would insert the word “Scottish”. For the reasons I gave above this may yet involve the lowering of the franchise if you (wisely) reconsider Calman's proposal about devolving the essential components of Scottish Parliamentary and local council elections to Holyrood for consideration.

Para 6: This is a connected issue to Para 5. The thrust of this provision is fine, as long as the relevant derogations are made to allow the Scottish Parliament to make the changes it sees fit in the ordinary course of business rather than simultaneously with the Referendum Bill.

Wednesday 18 January 2012

No is not enough; why the Scottish Lib Dems must embrace the Independence referendum

This post is a reproduction of my Op-Ed on Lib Dem Voice.

Alex Salmond’s SNP have a political mandate to hold a referendum on Scottish Independence. With an unprecedented majority in the Scottish Parliament and a manifesto pledge, the question is not if we have to confront this issue, but how.

Leaving aside arguments about the Scottish Parliament’s legal authority to legislate on an independence referendum (this can be resolved amicably through Westminster legislation) the Scottish Liberal Democrats must engage with the merits, not just of independence, but also “devo-max”.

Although Liberal Democrats generally support the Union, not all members are so-minded. Some (myself included) are ambivalent or notionally support Scottish independence, on distinctly liberal rather than “nationalist” grounds. Much of the SNP’s success resulted from attracting our former voters. Many in that party share our liberal instincts. On several issues we should be natural allies: wrestling power away from a London-centric Westminster; seeking reform of the EU’s CFP; and reforming social policy.

Alas the relationship has been fractious and dysfunctional. The tipping point was the last Parliament. Scottish Lib Dems inadequately co-operated with Salmond’s minority administration, in general and specifically on the Referendum Bill.

As democrats, we should have supported that referendum. As liberals we should have grasped that opportunity to articulate a federalist-inspired alternative. Call it “devo max”, “independence lite”; whatever you like. What mattered was it had to give the Scottish Parliament real power, not simply allocate resources from a Westminster hand-out.

The Steel Commission (2006) recognised this. Seeking full devolution of most taxes and the Crown Estate, it offered a real framework from which to articulate our vision for Home Rule. Parliaments responsible for raising every penny they spend have greater power, but greater accountability too.

Instead, we shunned the SNP’s “National Conversation” and referendum, turning to Scotland’s conservative forces: Labour and the Tories. The result? The Calman Commission, itself a damp squib, further diluted by the Scotland Bill. It marginally changes a tax-varying power Scotland has never sought to use and gave the Parliament modest borrowing powers. It ignored corporation tax, alcohol, tobacco and fuel duty and failed to overhaul the arbitrary and universally resented Barnett spending formula. We squandered a chance to shape Scotland’s future in our federal image. The electorate punished our cautious incrementalism. Our disastrous performance in 2011 wasn’t just a Coalition backlash; our unremitting negativity towards a relatively liberal and pragmatic SNP administration compounded it.

We must not throw-away this opportunity again. Our entire conduct towards the referendum has been in lockstep with the so-called “Unionist Bloc”.

Firstly, we’ve had this argument about the “economic uncertainty” businesses feel about the future constitutional set-up. Sure, CBI Scotland sought clarity on some issues, but most of this information is already in the public domain. In a globally integrated economy the notion that this causes mass uncertainty for Scottish business is unfounded.

Boyd Tunnock, prominent confectionery tycoon, wanted clarity on the currency and whether Anglo-Scot trade barriers would exist. These questions have been answered several times! The SNP would keep Sterling (we would be joint-stakeholders of the BOE) in the interim before putting any change (Euro or otherwise) to the people in a referendum. Further, Scotland wouldn’t have trade tariffs with England provided it was an EU/EFTA member, the first being almost certain. Absolutely there are questions that remain to be answered, for example how to separate assets and the national debt and structural EU issues, but they don’t give cause for scaremongering.

These are, anyhow, issues of process not principle. The raison-d’ĂȘtre of self-determination is being able to choose our currency and which international treaties to sign. Certainly the SNP should clarify their preferred and likely transitional arrangements, but advocating independence isn’t a perpetual manifesto of specifics. Trust the Scottish people to make these choices as and when the time comes.

Secondly, sending mixed-signals about the “devo-max” question, harms only us. Willie Rennie has made some positive signals but we need more. By challenging its place on the ballot we again throw away the chance to engage with the SNP and define the woolly term as our own vision. We could argue for: devolving taxes instead of tax rates; devolving powers to deal with Scotland’s drug problem; and devolving localised work visas to attract more people to Scotland and relieve pressure on the densely populated English South-East. We could seek guaranteed Holyrood representation on UK international delegations, particularly CFP negotiations, so Scotland’s fishermen’s concerns are voiced by the politicians closer to them.

That list isn’t exhaustive. More importantly, devo-max presents a chance to re-establish ourselves as an independent liberal-minded voice on the constitutional debate and in Scottish politics. Laying claim to the consensus option distinguishes us from Labour and the Tories, articulating a vision distinct from independence without attacking it for its own sake. If we do this we should achieve more working with the SNP administration. Moreover, we might just find the Scottish people willing to listen and engage with our ideas again.

Sunday 15 January 2012

There's nothing complicated about a two-question referendum

In response to this public statement from the Scottish Lib Dems/Willie Rennie.

I really don't see what all the fuss is about. The SNP have been completely clear about this.

First and foremost they want an independence question on the ballot. That is a question to the effect:

"Should Scotland become an independent state, Yes or No?" (legal wording ignored for the time being).

In addition to that, they want to have a question to the effect:

"Should the Scottish Parliament be given the range of powers so-identified as "Devo Max", Yes or No?" (again, the specific legal framing can be bashed out as and when)

If the poll produces the answer of "yes" to the first question the second question is irrelevant and should be ignored. Given they are two separate questions it isn't as though people are prevented from expressing their preferences. As Liberal Democrats we should trust the electorate to be able to tell the difference as and when it's laid out in front of them.

And the point about "following the 1997 model" is also a little bizarre. There is a similarity to the 1997 situation in that the questions are separate but related. But what Willie doesn't seem to realise is that the nature of the two questions means that the relevance of the second is, quite unambiguously, incumbent on a "No" vote to the first question rather than a "Yes". This is because they are alternatives rather than pre-requisites. If there is a "No" vote for Independence and a "Yes" vote for Devo-Max then the result is NOT the status quo, but Devo-Max. To suggest otherwise is a little like saying in 1997 "but what if they vote for tax powers but against a Scottish Parliament?" Don't be silly.

Whilst I have slight sympathy for the "consensus option" argument, in the context of how Willie and others have framed it I can't accept its validity. It is inconsistent to play the "which majority has the biggest mandate" card (i.e. say Devo-Max gets 70% and Independence 51%) and then also to say, as we appear to be, that a second question should not be on the ballot at all. If it is a straight Yes-No referendum with only one question, and independence wins it, we'll never find out if devo-max is the option offering the greatest degree of consensus because the question won't be asked!

In any case, as federalists and localists we should be working with the SNP on developing a presentable Devo-Max proposition. Get ourselves in the room and define the third option in terms of our own model of Home Rule instead of wrestling it from the ballot paper. As it stands, all we're serving to do is leave ourselves with nothing to say other than that we're the third-wheel of the Unionist "No" vote. That is unacceptable to me and an increasing number of Liberal Democrats. At the very least, I cannot bring myself to vote "No" to independence, as it infers an endorsement of the status quo. If a viable third option isn't on the table, I will be voting "Yes" to any independence question put before me (and not out of some great clamour for rosey notions of nationhood). If the Liberal Democrats won't champion an alternative, no one will.

Monday 9 January 2012

Cut the referendum strings. Let Holyrood be a real Parliament!

You can put strings on a puppet and make it dance to your tune. You can't put strings on a real boy and expect the same to happen. So says the tale of Pinocchio.

First let's clear something up. All this talk of Westminster legislating for a "binding referendum" on Scottish independence is total nonsense. There is no such thing as a binding referendum in the UK constitution. All referendums are advisory. Their force is only political and not legal. Westminster could legislate for a Referendum bill which gave specific instructions to begin a process to settle independence in the event of a "yes" vote but it could just as easily repeal that Act of Parliament and not honour the result. Their ability to lock-in a result is no greater than that of the Scottish Parliament.

The real legal issue here is whether the Scottish Parliament has the power to legislate for ANY sort of referendum pertaining to independence because of the reservation under Schedule 5 of the Scotland Act, which makes the "Union" between Scotland and England a "reserved matter" to Westminster. I have expressed my own view on the legal position, that Holyrood lacks the legal power, on numerous occasions and that has not changed.

But let's not pretend that the real legal issue is the real political one. On a political level it must be acknowledged that the SNP have a mandate to ask the Scottish people if they want to become independent from the UK on the terms specified in their manifesto. That includes when it is to be held. It is nothing short of disgraceful politicking on the part of the other parties if they try to place a sunset clause on the holding of a referendum. Westminster should amend the Scotland Act to empower the Scottish Parliament to legislate for a referendum, with access to all of the usual bodies, without ANY strings attached.

A real respect agenda towards the Scottish Parliament and those it represents requires that a basic democratic legitimacy threshold is met, and attempts to manipulate the result by forcing the SNP to hold a referendum before they said they would (in 2014 or 2015) is just crass and the Scottish people won't tolerate it. If David Cameron et al can't see that this is suicidal politicking as well as stupid then frankly they deserve to lose the referendum on that basis alone.

If those ambivalent or against independence want to remain relevant in the discussion of Scotland's constitutional future it must respect the democratic legitimacy of its institutions and let that debate take place. The Scottish people are capable of determining their own future. If independence is such a bad idea, trust them to vote accordingly as and when they asked. They aren't Pinocchio in construction. They're the real boy and strings won't hold them down.

It would, however, be inappropriate for the Scottish Government to use a separate body from the Electoral Commission to oversee the administration of the poll. Whilst I support the principle of the freedom of a separate commission (for example allowing 16 and 17-year-olds to vote) there must surely be concerns as to the independence and impartiality of a body set-up purely for the purposes of the referendum which alters basic fundamentals from the constitutional norms like suffrage. If Westminster is prepared to make the concessions they should, the SNP should be constructive on that side of the mechanics.